Part II: Tools for an effective follow-up and implementation 1.9 Commenting on and proposing draft legislation and policy The NPM mandate to submit proposals and observations concerning existing or draft legislation is specifically mentioned in the OPCAT. This mandate should be understood broadly to extend to all state policies relating to the mandate of the NPM. Many of the consulted NPMs comment on laws and policies and some Ombuds institutions can conduct reviews of constitutional laws. However, they are not always informed about and included in the process of drafting relevant laws and policies. Some NPMs also stated that in view of the targeted expertise and considerable resources required it can be difficult to fulfil this part of the mandate. Commenting on laws and policies is not only a specific right of NPMs but also an important part of the follow-up process ensuring the implementation of recommendations. Thus effective procedures and regulations need to be set up within the NPM and with the authorities to ensure that they are systematically included in the law drafting process. Moreover, it can be useful if NPMs cooperate with external experts from civil society, particularly universities and research institutes, to facilitate the task. In addition, NPMs may participate in consultations, special commissions and working groups on relevant law reforms. In order to ensure an effective follow-up, the authors of the Study recommend that the role of the NPM should not only be reactive in the commenting on draft legislation and policies but that it should also actively propose and advocate for necessary legislative changes and their implementation. For this purpose it may be useful to issue specific opinions or thematic reports. The OPCAT specifically grants NPMs the mandate ‘[t]o submit proposals and observations concerning existing or draft legislation’.174 According to the SPT, this requires that the state inform the NPM of any relevant draft legislation or policy and take into consideration the NPM’s view in the legislative process.175 The NPM’s mandate however is not limited to reactively commenting on draft laws and policies. The SPT emphasises: ‘The NPM is mandated to assess draft and existing legislation against the state’s international obligations and against other international standards. Therefore, the NPM should propose and advocate for necessary legislative changes and their implementation, e.g. with parliamentarians and government, in conjunction with other relevant actors when appropriate.’176 œœ Commenting and reviewing draft laws and policies Most NPMs in the EU are given this mandate by law or regulation, some, e.g. in Austria, including an obligation of the state to submit relevant draft laws and regulations to the Ombudsman Board, granting a reasonable period for review.177 However, NPMs reported that they sometimes had to act on their own initiative to ensure that they were able to provide comments due to the lack of a clear procedure for drafting laws that includes a referral to the NPM/Ombudsman. Thus, the Slovenian NPM has recommended in the consultations held in the framework of this Project that the inclusion of the Ombudsman in the legal drafting process should be specified by law. The French NPM noted that it is regularly requested by the authorities to comment on draft laws and has been heard in Parliament regarding draft laws and legislative proposals 16 times since 2008. It can ‘issue opinions, prepare recommendations to public authorities and make proposals to the Government as to the modification of applicable legal provisions and regulations’.178 Similarly, most Ombuds institutions See art 19(c) OPCAT. SPT, UN Doc CAT/OP/12/5, para 28. 176 SPT, UN Doc CAT/OP/1, para 28. 177 Austria, Law of the Austrian Ombudsman Board, art 7. 178 France, Act of the General Controller, art 10. 174 175 - 62 -